It is notorious that old habits die hard. That is certainly the case when it comes to adapting the SA national mind-set to the realities of our post-liberation constitutionalism as ushered in over 20 years ago. If the necessary adaptation is not successfully effected then the seeds of constitutionalism may find themselves on barren ground, with predictable consequences.
One of the most frequent give-aways of the on-going incorrect national mind-set is to refer to the governing alliance in national politics, and in all but one of the provinces, as “the ruling party”. It is an endemic error, committed by editors, journalists, authors, lawyers, political commentators and even politicians themselves. Everyone should know better; but old habits die hard.
This is not a mere pedantic complaint. The notion that the free people of SA are ruled by any party is foreign to the values and principles of our constitutional democracy. These precepts are encapsulated in the National Accord which was thrashed out by representatives of all significant groupings in the country in the period between 1990, when our liberation movements were unbanned, and 1996 when the final constitution, as certified by the Constitutional Court, found its way onto the statute book, eventually becoming our supreme law in February 1997.
It is appropriate to have regard to the provisions of chapter one of the constitution as regards the notion that we are now governed rather than ruled. This chapter is headed “Founding Provisions” and it envisages a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”. In this dispensation the values of human dignity, the achievement of equality and the advancement of human rights and freedoms hold pride of place. Non-racialism and non-sexism are fundamental to the new order which is based on, to quote section 1 (c): “Supremacy of the constitution and the rule of law”.
These values represent a sea-change in the way in which SA is run. Under the old apartheid order the parliament of the day was sovereign and the “testing rights” of the courts far more circumscribed than is the case today. This is one of the biggest differences between the old order and the new. No longer can a sovereign parliament do as it pleases, we are all constrained by the values, tenets and principles of our not-so-new supreme law.
As if to emphasise this basic point, section 2 of the constitution reads:
“The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
The notions “law or conduct” cover every activity of government and a lot more. Certainly, as has been demonstrated time and again in litigation challenging impugned “law or conduct”, the courts jealously guard the values of the constitution and now have the final say as to what the constitution means when its implementation forms the subject matter of any dispute that is litigated. The Constitutional Court was created in the new constitution in order to be the final arbiter of disputes concerning the fulfilment of the obligations imposed by the constitution. All concerned in constitutional disputes, including government, are bound by the final findings of the courts. In this way it is the constitution that rules.
The co-supremacy of the rule of law brings with it a national commitment to the separation of powers, the imposition of checks and balances on the exercise of power and the implementation of a justiciable Bill of Rights which requires the state to “respect, protect, promote and fulfil” all of the rights and freedoms guaranteed to all by the founders of the new order. Rights to life, dignity, freedom of expression (which includes media freedom) and a multitude of socio-economic rights, which are the envy of freedom loving people the world over, hold pride of place in the new culture of human rights which replaces the oppression inherently involved in the apartheid era.
We have institutions, created under chapter nine of the constitution, which exist to support constitutional democracy. These institutions operate in a way that is supplementary to the role of the courts in ensuring that the country does not stray onto a path that is inconsistent with its constitution. Elections, human rights, maladministration, cultural rights, gender parity and proper accounting for expenditure of public funds are among the business of the various chapter nine institutions which are enjoined to act “without fear, favour or prejudice” (in a word “independently”) in the discharge of their constitutional obligations.
It is indeed a miracle that the founders of the new order were able to negotiate so satisfactory and people-friendly a compromise during the constitution making process. The two main protagonists in the negotiations were the Afrikaner nationalists then in power and the African National Congress. Both groups did not have a track record of fealty to constitutional democracy under the rule of law. The authoritarian tendency of the National Party of old is well documented, as is the communist influence on the thinking of the ANC. Under communism the hegemonic control of all of the levers of power in a one party state is the aim of the Lenin-inspired “national democratic revolution”. This “revolution” remains the policy of the ANC and its alliance partners to this day. Obviously, hegemonic control of all levers of power is inconsistent with a constitution of the kind we have had in SA since 1994.
Yet, the mind-sets of the past linger.
This is at least in part attributable to a lack of appreciation of the lasting value of constitutional democracy as a framework within which to create the type of “united in diversity”, free and open society that the preamble to the constitution envisages. Before she belly-flopped into the murky waters of party politics, Dr Mamphela Rhamphele led a campaign with the tee-shirt motto “subject to citizen”. The underlying premise of the campaign was to change the attitude of her fellow citizens of SA from that of “subjects” who are ruled, to that of “citizens” who are governed in a multi-party and participative system of government that has social justice and fundamental human rights at its forefront. Becoming active citizens who insist on being governed in accordance with the constitution and the rule of law ought to be the business of everyone living in SA today. Unfortunately, this is not the case. Those who dream of and aim towards hegemonic control of all the levers of power in a one party state are not friends of the constitutional dispensation in place. They actually mean it when they refer to “the ruling party”. And they mutter darkly about the deleterious effects constitutionalism has on their desire for hegemony.
Everyone who values the benefits of multi-party democracy under the rule of law in our current constitutional dispensation ought to cultivate the habit of referring to governing parties everywhere at every level as “the governing party” not “the ruling party”. This appellation is a salutary reminder that we are no longer ruled, that government is limited in what it does by the obligations imposed on it by the constitution and the rule of law. When it strays into the realms of that which is inconsistent with the constitution, government is liable to have its laws or conduct struck down as invalid in court, when it is challenged by vigilant citizens, organisations and opposing political parties.
Paul Hoffman SC
Is a director of Accountability Now www.acccountabilitynow.org.za
16 March 2015.